ARKANSAS' DEATH QUALIFIED JURIES - DEATH QUALIFIED POPULARITY - Government - http://maxpages.com/darkevilworld/Death_Qualified_Juries_Part

For the next 18 years or so, jurors around the country were "death qualified" and both the convictions of those accused of capital offenses, as well as those who were sentenced to death greatly increased. Several colleges, universities, and research centers around the country conducted surveys and experiments which, ultimately, would fairly prove that jurors who were first "death qualified" did in fact show a statistical proneness to convict a defendant in the first place. There was an unmistakable pro-state "bias" in death qualified juries. Indeed, it has since been disclosed that almost 100 people on death rows all around the country in the past 30 years were proven without question to be innocent, AFTER they had already been executed - mostly in cases stemming from rural trial districts where the judge, prosecutor, police and other witnesses, and jurors were pals and drinking buddies after work.

In 1985, after Witherspoon had been misapplied, misinterpreted, and abused in trials all around the country, the United States Supreme Court was compelled to visit the issue again. In Wainwright v. Witt, 469 U.S. 412 (1985). The court clarified the extent to which jurors could be "death qualified" and the circumstances in which "recalcitrant" jurors with sentiments against the death penalty could be stricken as a juror. In summing up the clarified standard, the Court stated: This standard likewise does not require that a juror's bias be proved with "unmistakable clarity." This is because determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism. What common sense should have realized experience has proved: many veniremen simply cannot be asked enough questions to reach the point where their bias has been made "unmistakably clear"; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings. Despite this lack of clarity in the printed record, however, there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law. (The emphases are mine. Note them, I will return to this judicial decree again in the context of pro-state "voter bias").

At the same time that the "death qualification" issue was evolving at law all around the nation, challenge was also being made to various limits and qualifications required for a citizen to be permitted to sit as a juror at trial. In a few states, for example, only registered voters could sit on juries - Arkansas is one of these states. That was and in Arkansas STILL IS the only basis for qualifying for jury duty.

Needless to say, based on a host of demographic and other qualifiers, allowing only voter-registered citizens to be eligible for jury duty did, in some parts of the country, almost completely eliminate certain "distinct groups" of people from jury duty. For example, where women and Afro-Americans had only relative recently gained the right to vote and to register to vote - juries were at first predominantly white and male, because only whites and males were allowed to register to vote. However, even after African-Americans and women could register to vote, it would be many more years before a significant number of them actually would register to vote. This was, of course, due in largest part to the prejudices and hatreds manifested toward minorities that lingered well into 1960s, 70s, and 80s.

Blacks, or Latinos, and other "distinct" minorities were also often afflicted with other social and economic barriers that in themselves would prevent them from registering to vote for any number of reasons. Sometimes members of these minorities could not register to vote for reasons as insignificant as not having transportation to and from the registration centers, or perhaps because they could not read or write or read the English language in which the registration paperwork was printed. In short, the qualifiers that can effectively eliminate minorities from jury duty where only registered voters are eligible are real and numerous.

In Arkansas, the most common form of challenge to the voter-registration requirement as the exclusive means for establishing juror eligibility involved the exclusion of African-Americans from juries in most trial districts around the state. Throughout the 1970s and 80s, however, few convictions were overturned in Arkansas on this basis, in large part because Arkansas is not noted for keeping complete or comprehensive records on key demographic factors of its populations, and so it was often impossible for a defendant to "prove" that no African-Americans being on his jury was the product of the voter-registration limitation and/or the result of a willful and systematic exclusion of blacks from Arkansas juries by the court or prosecution. The only cases to win were those where one or two blacks did appear in the general jury venire but were then eliminated from a specific jury by the state's exercise of its peremptory strikes. (In criminal trials each side gets a certain number of predetermined "strikes" by which it can eliminate a juror for basically any subjective reason at all. Some jurors are also stricken "for cause" as a result of having knowledge of the case beforehand, or because they know one of the parties or the victims involved, etc.)

Likewise, in many Arkansas trial districts – simply because they are still largely feudal - certain judges or prosecutors are elected unopposed or by landslide, thereby increasing the random draw statistical probability that their own voter constituents will also become jurors in a given case in which they preside or prosecute. This is serious business where the state's burden of proof to beyond reasonable doubt is one of "persuasion" in the first place, and where the trial judge must not only give the appearance of being fair and unbiased, but must in fact be so. Obviously, a prosecutor who had "persuaded" the voters to elect him to that job would undoubtedly have a decided edge in also "persuading" his voters-become-jury to believe the state's theory of the case at trial, or to "persuade" an already death qualified and conviction-prone jury who elected him to office to impose a death sentence. Only ostriches and would conclude otherwise.

Virtually all other states have expanded their juror eligibility pools of citizens to include those registered with the Department of Motor Vehicles, or who are listed on property tax payment rosters, etc. In several states the appellate courts there long ago ruled that limiting juror pools to voter-registration was likely unconstitutional because of its tendency to impact certain minorities only, thereby effectively under-representing them in courts of law, and thereby depriving defendants trials by fair cross-sections of their peers. E.g. People v. Harris, 36 Cal. 3d 36, 679 P2d 433 (1984).

However, in Arkansas the highest courts still cling to the fact that there is nothing wrong with eliminating all persons who are not registered voters from jury service, regardless of circumstances. This position is merely one of obstinacy and loyalty to the good ol' boy way of doing things. As stated by the U.S. Supreme Court in Witt, "What common sense should have realized experience has proved."

Both the INDEPENDENT issues of "death qualification" of jurors, and limiting juror eligibility exclusively to voter- registered persons, became particularly difficult to consistently and uniformly decide (and therefore the law is replete with apparently contradictory decisions) because the particular factual bases underpinning the asserted constitutional violations were themselves often dependent on many variables. For example, say that an "in the hills" Arkansas trial district had NO African-Americans living within the trial district. If a defendant there raised the issue of being denied a "fair cross section" of the community on his jury because no blacks were present, the court would be hard pressed to overturn the conviction by an all-white jury on a challenge to the constitutionality of limiting jurors to voter-registration alone, simply because there were no black residents within the trial district per se.

Similarly, as the objective evidence from researchers around the country showing that death qualified jurors were in fact "conviction prone" greatly increased - courts in different parts of the country began to rule that death qualification of jurors did deny the defendant a fair and impartial trial. However, the lower courts were generally overruled by a higher court on this question, because the case of Witherspoon and its progeny was the controlling law. However, more and more higher court justices also began "dissenting" from the majority's decisions because they were persuaded by the
evidence from the researchers.

In any event, the Arkansas Supreme Court has, more or less consistently, ruled that "death qualified" juries are not unconstitutional, beginning in Rector v. State, 280 Ark 385, 659 S.W.2d 168 (1983); and that limiting juror selection to voter-registration lists exclusively does not unconstitutionally presumptively discriminate against any "distinct groups" along lines of race, sex, ethnicity, age, or other qualifiers. But, these rulings all deal with basically separate and diverging issues that have not come up in the context of a single case at the same time, and certainly not also in conjunction with the fact that jurors in Arkansas also often elect the very judge and prosecutor of the case in which they are seated as jurors.

In Sanders v. State, 300 Ark. 25, 776 S.W2d 334 (1989), now retired Arkansas Supreme Court Justice John I. Purtle stated that he concurred with the majority only because he himself had not had time to study the issue raised by the defendant in that particular case, but that he found something innately wrong with the fact that of 300 jurors in the pool of that trial district, not one black appeared - while statistics of the racial composition in that trial district were readily available. (But had not been produced at trial or on appeal by the appellant's attorneys). Justice Purtle, who has been one of the strongest and most outspoken champions of constitutional law in Arkansas for decades, has otherwise dissented almost 600 times to express his considered opinion that many of Arkansas' processes are unconstitutional, and to critically expose how the "good ol' boys" do things.

So, the reader must note that the current law is still that death qualification of jurors is not unconstitutional, and that voter registration as the exclusive basis for juror eligibility is likewise not unconstitutional.

HOWEVER, IT CANNOT BE EMPHASIZED ENOUGH THAT IN NONE OF THE DECISIONS CULMINATING INTO EITHER SUBJECT UNDER CURRENT LAW WAS IT EVER CONSIDERED THAT IN ARKANSAS, VOTER-REGISTERED JURORS OFTEN ELECT TO OFFICE THE VERY JUDGES AND PROSECUTORS TRYING THE CASE, THEN TURN AROUND AND SIT AS JURORS IN THEIR COURTS, ARE DEATH-QUALIFIED (AND CONVICTION PRONE), THEN RECEIVE THE APPEAL FROM THEIR OWN ELECTED OFFICIAL TO RENDER A VERDICT IN FAVOR OF "THE STATE," AND TO IMPOSE A DEATH SENTENCE "IN THIS CASE."

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